Kenneth Rijock

Sunday, October 23, 2016

The law firms representing the Iranian gold trader, Reza Zarrab, charged with massive Iran sanctions violations, have asked the Court to loosen the severe restrictions placed upon them, regarding the sharing of Discovery with fact witnesses or third parties. This request, which came in the form of a letter to the sitting District Judge, which appears in the court file, reveals a disturbing change in the Government's position, affecting the more than 60,000 documents it has produced.

Early on in the case, and with agreement of both sides, the Court entered a Protective Order, restricting access to the Discovery to only defense counsel, their immediate support staff, and expert witnesses. The defense was prohibited from allowing any other party to review it, and could not disseminate it to foreign individuals or entities, or send it outside the United States, for any purpose. All recipients were to receive a copy of the Protective Order, and could not share the evidence with anyone else.

The Government's stated reason for the severe restrictions it wanted placed upon the Discovery was that it contained certain materials that, if delivered to third parties, could impede ongoing investigations, and possibly affect the safety of others. Given those stated concerns, the defense team agreed to the Protective Order.

There are generally valid reasons for these grounds. If the documents revealed additional targets of the investigation, they could be alerted to this fact, and engage in flight to avoid prosecution. Also, some documents, if made public, might identify cooperating individuals, who supplied evidence, or even undercover law enforcement officers, both of whom might have their lives at risk, under those circumstances, if their names appeared in the Discovery, or they were the obvious sole source of the information.

Subsequently, the law firms representing Zarrab, in the preparation of his defense, concluded that they needed to show some of the evidence to fact witnesses, or to individuals that they planned to interview, with the aim that they ultimately become fact witnesses for the defense. Counsel then conferred with the Assistant US Attorneys handling the case, seeking some sort of agreement on modifying the Protective order.

The Government declined to agree to such a loosening of the Protective Order, but reportedly changed the grounds for its refusal, now no longer asserting that ongoing investigations must be protected, or that there were safety considerations, but that the Order could not be modified, for the reason that there were national security interests at stake. When pressed, Government prosecutors refused to be more specific, refraining from naming the documents, or categories of documents produced, which, if disclosed, would threaten such national security interests. At that point, defense counsel sent the letter which is the subject of this article.

While there may be classified reasons to prevent third parties, especially third parties located outside the United States, from gaining access to the Discovery, produced by the Government, a blanket national security objection, not verified by the Court, perhaps through in camera inspection, or testimony. An order declining the defense request could end up denying the defendant a fair trial, through a failure to allow counsel present an effective defense. If the fact witnesses, or prospective defense witnesses, cannot see the evidence to be admitted at trial, they may be at a disadvantage when testifying.

The letter to the Court was sent on October 19, 2016; The following day, the Court ordered the Government to respond by noon, on October 24th, which is tomorrow. Thus far, this case has presented issues of great public interest, and it continues to hold the interest of the legal community, and of the public at large. Still unresolved is the motion to suppress evidence seized when the defendant was detained, upon arrival in the United States, while on vacation.